The Quest For Liberty And Dignity: Against Judicial Insensitivity To A Woman’s Autonomy

The judicial responses to cases, especially when it comes to womxn exercising their autonomy and rights over their bodies, never cease to amaze. Activist Rehana Fathima was recently in news for trying to educate her children about the female body and liberate their minds of hyper-sexualisation of women. She chose an unconventional method – of getting them to paint on her semi-nude body and posting a video on social media featuring the act of her children engaged in painting. The video led to a public outcry, accusing the activist of portraying obscene representation of children. Rehana Fatima, having been charged under Section 13 of POCSO and Section 67B of the Information Technology Act, sought anticipatory bail from the Kerala High Court.

The Kerala High Court took the view that the activist had used her children for sexual gratification and “the children are represented in the video uploaded in an indecent and obscene manner because they are painting on a naked body of their mother”. The Court further opined that if the act of painting was done within the four walls, it would not have constituted an offence. However, the offence, according to the High Court, has been committed by uploading the video on social media platforms. 

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The High Court’s decision seems to have revived the debate surrounding women’s autonomy, female nudity and obscenity. Many would disagree with the choice of the activist to use her body as a canvas to educate her children or spread awareness of the female body or liberate the mind from hyper-sexualisation. But that would not necessarily make it obscene. Nudity is not in appearance but in thoughts. The message in a picture overpowers the ‘not so visible’ nudity and expresses how female nudity is not just about sexualisation. The Delhi High Court considered in Maqbool Fida Husain (2008) case whether the nude portrayal of Bharat Mata by the artist should be considered obscene. The Court held that “…the aesthetic touch to the painting dwarfs the so-called obscenity in the form of nudity” and that the art makes the nudity so insignificant that it can be easily overlooked.

Again, the Supreme Court in Aveek Sarkar (2014) had, while quashing a case against the publication of a nude picture, held that only those sex-related materials which have a tendency of exciting lustful thoughts can be held to be obscene. 

The High Court seems to be influenced by the fact that the act of the children painting on their mother’s body was circulated on the internet instead of being confined in a private space. The offence is believed to have been committed by uploading the video and not by creating it. This raises a question— if the act per se is not an offence, then could the circulation of its video be an offence? In any case, it is difficult to comprehend how the activist could be said to have used her own children for sexual gratification. The activist has now moved the Supreme Court challenging the dismissal of her anticipatory bail petition. It remains to be seen how the Apex Court deals with such challenge.

It is sad that female public nudity and women’s autonomy over their expressions is still treated as a moral offense and is a cause for concern. If a child, through such seemingly radical means, is liberated of hyper-sexuality right from the childhood, it will probably eradicate this notion which is prevailing since ages. Breaking such stereotypes will lead to liberty of woman in the real sense. 

This is not a case in isolation. There are a number of judgments that reflect judicial insensitivity to the autonomy of a woman, even to the extent of affecting her liberty. For instance, the Magistrate in the Araria District Court in Bihar construed the outburst of a gang rape survivor in Court as contempt and sent her into custody. The outburst by the survivor was said to have been after she had to stand for hours in humid conditions in close proximity of an accomplice of her alleged rapists. Be that as it may, the very fact that the survivor was remanded to custody by the Magistrate speaks volumes of his lack of empathy towards her. It was only about a week later – on 17 July 2020 – that the survivor was granted bail.

In a bizzare move, a former priest of the Roman Catholic Church in Kerala who was jailed for the rape of a minor girl four years ago moved to the Kerala High Court. The convict filed an application seeking suspension of the sentence to marry the victim. The application is still pending in the High Court of Kerala. However, various activists and advocates were seen raising their voice against allowing bail to the convict.

In another case, the Orissa High Court granted bail on 24 July 2020 to a man accused of rape of a minor after he revealed that he, while availing the interim bail, had married the victim, who had now attained majority. The fact that a rape accused married his victim was treated to be the consideration for granting bail was shocking, for lack of better words. It seems to have been overlooked that the offence of rape is a crime against society and not just against the victim (Shimbhu, 2013). Such a conduct might eventually encourage the accused to pressurise the victim into a marriage to save himself from the troubles of litigation and punishment.

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These pronouncements underscore that in our legal system, especially the fate of a woman’s liberty and dignity depends on the sensitivities and the bias of a judge and his or her subjective thoughts and beliefs on what ought to have been an appropriate conduct. That, by itself, reflects a sorry state of affairs as far as women’s autonomy and emancipation in India are concerned.

Meghna Sharma is a keen researcher and a writer. She has been writing on Women’s rights, environmental and constitutional law. Currently, she is also pursuing a degree in law. She can be found on Facebook, Instagram, Twitter and LinkedIn.

Featured Image Source: Aasawarni Kulkarni for Feminism In India